In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 20-2835 & 20-2844 

DEMOCRATIC NATIONAL COMMITTEE, et al., 

Plaintiffs-Appellees, 

v.

MARGE BOSTELMANN, SECRETARY OF THE WISCONSIN 

ELECTIONS COMMISSION, et al., 

Defendants, 

and 

WISCONSIN STATE LEGISLATURE, REPUBLICAN NATIONAL 

COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN, 

Intervening Defendants-Appellants. 

____________________ 

Appeals from the United States District Court 

for the Western District of Wisconsin. 

Nos. 20-cv-249-wmc, et al. — William M. Conley, Judge. 

____________________ 

SUBMITTED OCTOBER 6, 2020 — DECIDED OCTOBER 8, 2020 

____________________ 

Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges. 

PER CURIAM. On September 29, 2020, we issued an order 

denying the motions for a stay in these appeals, because we 
2 Nos. 20-2835 & 20-2844 

concluded that Wisconsin’s legislative branch has not been 

authorized to represent the state’s interest in defending its 

statutes. On October 2, in response to a request for reconsideration, we certified to the Supreme Court of Wisconsin the 

question “whether, under Wis. Stat. §803.09(2m), the State 

Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws.” That court accepted the certification and replied that the State Legislature 

indeed has that authority. Democratic National Committee v. 

Bostelmann, 2020 WI 80 (Oct. 6, 2020). In light of that conclusion, we grant the petition for reconsideration and now address the Legislature’s motion on the merits. (The other intervenors have not sought reconsideration.) 

As we explained last week, a district judge held that 

many provisions in the state’s elections code may be used 

during the SARS-CoV-2 pandemic but that some deadlines 

must be extended, additional online options must be added, 

and two smaller changes made. 2020 U.S. Dist. LEXIS 172330 

(W.D. Wis. Sept. 21, 2020). In particular, the court extended 

the deadline for online and mail-in registration from October 

14 (see Wis. Stat. §6.28(1)) to October 21, 2020; enjoined for 

one week (October 22 to October 29) enforcement of the requirement that the clerk mail all ballots, but only for those 

voters who timely requested an absentee ballot but did not 

receive one, and authorized online delivery during this time; 

and extended the deadline for the receipt of mailed ballots 

from November 3 (Election Day) to November 9, provided 

that the ballots are postmarked on or before November 3. 

Two other provisions of the injunction (2020 U.S. Dist. LEXIS

172330 at *98) need not be described. 
Nos. 20-2835 & 20-2844 3 

The State Legislature offers two principal arguments in 

support of a stay: first, that a federal court should not change 

the rules so close to an election; second, that political rather 

than judicial officials are entitled to decide when a pandemic 

justifies changes to rules that are otherwise valid. See Luft v. 

Evers, 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin’s 

rules after reviewing the elections code as a whole). We 

agree with both of those arguments, which means that a stay 

is appropriate under the factors discussed in Nken v. Holder, 

556 U.S. 418, 434 (2009). 

For many years the Supreme Court has insisted that federal courts not change electoral rules close to an election 

date. One recent instance came in an earlier phase of this 

case. After the district judge directed Wisconsin to change 

some of its rules close to the April 2020 election, the Supreme 

Court granted a stay (to the extent one had been requested) 

and observed that the change had come too late. Republican 

National Committee v. Democratic National Committee, 140 S. Ct. 

1205, 1207 (2020). One of the decisions cited in that opinion 

is another from Wisconsin: Frank v. Walker, 574 U.S. 929 

(2014). In Frank this court had permitted Wisconsin to put its 

photo-ID law into effect, staying a district court’s injunction. 

But the Supreme Court deemed that change (two months 

before the election) too late, even though it came at the 

state’s behest. (Frank did not give reasons, but Republican National Committee treated Frank as an example of a change 

made too late.) Here the district court entered its injunction 

on September 21, only six weeks before the election and less 

than four weeks before October 14, the first of the deadlines 

that the district court altered. If the orders of last April, and 

in Frank, were too late, so is the district court’s September 
4 Nos. 20-2835 & 20-2844 

order in this case. See also Purcell v. Gonzalez, 549 U.S. 1 

(2006). 

The Justices have deprecated but not forbidden all 

change close to an election. A last-minute event may require 

a last-minute reaction. But it is not possible to describe 

COVID-19 as a last-minute event. The World Health Organization declared a pandemic seven months ago, the State of 

Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic. If the judge 

had issued an order in May based on April’s experience, it 

could not be called untimely. By waiting until September, 

however, the district court acted too close to the election. 

The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the 

Supreme Court’s recent stay of another injunction issued 

close to the upcoming election. Andino v. Middleton, No. 

20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The 

Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause, 

139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992). 

Voters have had many months since March to register or 

obtain absentee ballots; reading the Constitution to extend 

deadlines near the election is difficult to justify when the 

voters have had a long time to cast ballots while preserving 

social distancing. The pandemic has had consequences (and 

appropriate governmental responses) that change with time, 

but the fundamental proposition that social distancing is 

necessary has not changed since March. The district court 

did not find that any person who wants to avoid voting in 
Nos. 20-2835 & 20-2844 5 

person on Election Day would be unable to cast a ballot in 

Wisconsin by planning ahead and taking advantage of the 

opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could 

be encountered by voters who do not plan ahead and wait 

until the last day that state law allows for certain steps. Yet, 

as the Supreme Court observed last April in this very case, 

voters who wait until the last minute face problems with or 

without a pandemic. 

The Court has consistently stayed orders by which federal judges have used COVID-19 as a reason to displace the 

decisions of the policymaking branches of government. It 

has stayed judicial orders about elections, prison management, and the closure of businesses. We have already mentioned Andino and Republican National Committee. See also 

Clarno v. People Not Politicians Oregon, No. 20A21 (U.S. Aug. 

11, 2020) (staying an injunction that had altered a state’s signature and deadline requirements for placing initiatives on 

the ballot during the pandemic); Merrill v. People First of Alabama, No. 19A1063 (U.S. July 2, 2020) (staying an injunction 

that had suspended some state anti-fraud rules for absentee 

voting during the pandemic); Barnes v. Ahlman, 140 S. Ct. 

2620 (2020) (staying an order that overrode a prison warden’s decision about how to cope with the pandemic); Little 

v. Reclaim Idaho, 140 S. Ct. 2616 (2020) (staying an injunction 

that changed the rules for ballot initiatives during the pandemic); South Bay United Pentecostal Church v. Newsom, 140 S. 

Ct. 1613 (2020) (declining to suspend state rules limiting 

public gatherings during the pandemic). 

Deciding how best to cope with difficulties caused by 

disease is principally a task for the elected branches of gov-
6 Nos. 20-2835 & 20-2844 

ernment. This is one implication of Jacobson v. Massachusetts, 

197 U.S. 11 (1905), and has been central to our own decisions 

that have addressed requests for the Judicial Branch to supersede political officials’ choices about how to deal with the 

pandemic. See, e.g., Tully v. Okeson, No. 20-2605 (7th Cir. Oct. 

6, 2020) (rejecting a contention that the Constitution entitles 

everyone to vote by mail during a pandemic); Illinois Republican Party v. Pritzker, No. 20-2175 (7th Cir. Sept. 3, 2020) (rejecting a constitutional challenge to limits on the size of political gatherings during the pandemic); Peterson v. Barr, 965 

F.3d 549 (7th Cir. 2020) (reversing an injunction that had altered procedures for executions during the pandemic); Morgan v. White, 964 F.3d 649 (7th Cir. 2020) (social distancing 

during a pandemic does not require, as a constitutional 

matter, a change in the rules for qualifying referenda for the 

ballot); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 

341 (7th Cir. 2020) (rejecting a constitutional challenge to 

limits on the size of religious gatherings during the pandemic). Cf. Mays v. Dart, No. 20-1792 (7th Cir. Sept. 8, 2020) (reversing, for legal errors, an injunction that specified how 

prisons must be managed during the pandemic). 

The injunction issued by the district court is stayed pending final disposition of these appeals. 
Nos. 20-2835 & 20-2844 7 

ROVNER, Circuit Judge, dissenting. In the United States of 

America, a beacon of liberty founded on the right of the people to rule themselves, no citizen should have to choose between her health and her right to vote. An election system designed for in-person voting, coupled with an uncontrolled 

pandemic that is unprecedented in our lifetimes, confronts 

Wisconsin voters with that very choice. In the April 2020 election, Wisconsin voters sought overwhelmingly to protect 

themselves by voting absentee. Yet at least 100,000 of them, 

despite timely requests, did not receive their ballots in time to 

return them by election day, as the Wisconsin election code 

requires. Only as a result of judicial intervention in the April 

2020 election were some 80,000 absentee ballots, their return 

delayed by an overwhelmed election apparatus and Postal 

Service, rescued from the trash bin. Thousands of additional 

voters who never received their ballots were forced to stand 

in line for hours on election day waiting to vote in person, 

risking their well-being by doing so. 

For purposes of the upcoming November election, the district court ordered a limited, reasonable set of modifications 

to Wisconsin’s election rules designed to address the very 

problems that manifested in the April election and to preserve 

the precious right of each Wisconsin citizen to vote. Its two 

most important provisions are comparable to those this very 

court sustained six months ago. The Wisconsin Election Commission, whose members are appointed by the Legislature 

and the Governor and are charged with administering the 

State’s elections, has acceded to that injunction. It is not here 

complaining of any undue burden imposed by the district 

court’s decision or any risk of voter confusion. Only the Wisconsin Legislature, which has chosen to make no accommodations in the election rules to account for the burdens created 
8 Nos. 20-2835 & 20-2844 

by the pandemic, seeks a stay of the injunction in furtherance 

of its own power. 

Today, by granting that stay, the court adopts a hands-off 

approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote. It does so 

on two grounds: (1) the Supreme Court’s Purcell doctrine, as 

exemplified by the Court’s recent shadow-docket rulings, in 

the majority’s view all but forbids alterations to election rules 

in the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale justifies a stay of the district 

court’s careful, thorough, and well-grounded injunction. At a 

time when judicial intervention is most needed to protect the 

fundamental right of Wisconsin citizens to choose their 

elected representatives, the court declares itself powerless to 

do anything. This is inconsistent both with the stated rationale 

of Purcell and with the Anderson-Burdick framework, which 

recognizes that courts can and must intervene to address unacceptable burdens on the fundamental right to vote. The inevitable result of the court’s decision today will be that many 

thousands of Wisconsin citizens will lose their right to vote 

despite doing everything they reasonably can to exercise it. 

This is a travesty. 

On the facts of the case, I see no deviation from Purcell. In 

all of two sentences, Purcell articulated not a rule but a caution: take care with last-minute changes to a state’s election 

rules, lest voters become confused and discouraged from voting. Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S. Ct. 5, 7 (2006) 
Nos. 20-2835 & 20-2844 9

(per curiam).1 In a series of stay rulings on its shadow docket 

since that decision, the Supreme Court has evinced a pronounced skepticism of judicial intervention in the weeks prior 

to an election, e.g. Andino v. Middleton, — S. Ct. —, 2020 WL 

5887393 (U.S. Oct. 5, 2020), but has put little meat on the bones 

of what has become known as the Purcell doctrine. See Nicholas Stephanopoulos, Freeing Purcell from the Shadows, Election 

Law Blog (Sept. 27, 2020) (hereinafter, “Freeing Purcell”) 

(“[d]espite all of this activity, the Purcell principle remains remarkably opaque”)2. Perhaps we can say at this point that 

Purcell and its progeny establish a presumption against judicial intervention close in time to an election. See id. (“This is 

the reading most consistent with Purcell’s actual language.”). 

But how near? As to what types of changes? Overcome by 

what showing? These and other questions remain unanswered. 

The Supreme Court’s stay decision in this case regarding 

the April 2020 election did little to clear things up. This court 

had denied a stay as to two changes the district court ordered 

for purposes of that spring election: extending the deadline 

for requesting an absentee ballot, and extending the deadline 

for receipt of completed absentee ballots. Dem. Nat’l Com. v. 

Bostelmann, 2020 WL 3619499, at *1 (7th Cir. April 3, 2020). The 

Wisconsin Legislature appealed only the ballot-receipt deadline. Although the Court had critical things to say about the 

1 “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away 

from the polls. As an election draws closer, that risk will increase.” Purcell, 

549 U.S. at 4–5, 127 S. Ct. at 7. 

2 Available at https://electionlawblog.org/?p=115834. 
10 Nos. 20-2835 & 20-2844 

last-minute change in rules ordered by the district court’s injunction (in part because the district court had ordered relief 

beyond what the plaintiffs themselves had requested), it then 

proceeded to impose one of its own, ordering that absentee 

ballots must either be delivered or postmarked on or before 

election day in order to be counted. Repub. Nat’l Com. v. Dem. 

Nat’l Com., 140 S. Ct. 1205, 1207, 1208 (2020). The Court was 

also at pains to emphasize that it was reserving judgment as 

to “whether other reforms or modifications in election procedures in light of COVID-19 are appropriate.” Id. at 1208. Apart 

from that, the Supreme Court’s pattern of staying similar sorts 

of injunctions in recent months is long on signaling but short 

on concrete principles that lower courts can apply to the specific facts before them. 

Until the Supreme Court gives us more guidance than Purcell and an occasional sentence or two in its stay rulings have 

provided, all that lower courts can do—and, I submit, must 

do—is carefully evaluate emergent circumstances that 

threaten to interfere with the right to vote and conscientiously 

evaluate all of the factors that bear on the propriety of judicial 

intervention to address those circumstances, including in particular the possibility of voter confusion. 

A variety of factors should inform a court’s decision 

whether or not to modify election rules. See Freeing Purcell. On 

balance, these factors support rather than undermine the district court’s decision here. 

The first consideration is whether the proposed modifications might confuse voters. That risk is minimal here. Only 

two of the five modifications that Judge Conley ordered alter 

what is expected of voters: the extension of the deadline to 

register online or by mail, and the extension of the deadline 
Nos. 20-2835 & 20-2844 11

for receipt of absentee ballots. Both of these modifications redound to the benefit of voters, and certainly do not lay a trap 

for the unwary. We upheld (i.e., denied a stay as to) comparable changes for the April election, and the Supreme Court 

modified the latter only to the extent of requiring that an 

absentee ballot be delivered or postmarked on or before 

election day.3 Neither we nor our superiors would have done 

so had there been a substantial risk of confusing voters. The 

other three changes are directed to election officials and what 

they must do. By their nature, these changes will not impact 

voter decisions. 

A second consideration is whether the changes to election 

rules will burden election officials and increase the odds that 

they make mistakes. Judge Conley gave careful attention to 

whether state election officials would have the time and ability to implement the changes he ordered. The Wisconsin Election Commission signaled a preparedness and ability to comply with these modifications (more on these points below), 

and the State Executive is not here to contend otherwise. 

We must consider, third, the likelihood that voter disenfranchisement will ensue from the changes Judge Conley ordered. The answer here is straightforward: it will not. On the 

contrary, his directives are aimed at preventing disenfranchisement. And as detailed below, the results of the April 

3 In its April decision, this court denied a stay as to an extension of the 

deadline to request an absentee ballot and the deadline for receipt of a 

completed absentee ballot. Bostelmann, 2020 WL 3619499, at *1. The district 

court had also ordered an extension of the deadline to register online for 

the April election, see Dem. Nat’l Com. v. Bostelmann, 447 F. Supp. 3d 757, 

765–67 (W.D. Wis. Mar. 20, 2020), but a stay was not sought as to that extension. 
12 Nos. 20-2835 & 20-2844 

election in Wisconsin demonstrate that only in the absence of 

judicial intervention will voters be disenfranchised. 

Fourth, there has been no lack of diligence on the part of 

the plaintiffs in seeking relief. They sought relief in advance 

of the April election, as the pandemic was heating up, succeeded in part as to that election, and promptly renewed their 

pursuit of relief in the immediate aftermath of that election. 

After they defeated the Legislature’s attempt to dismiss their 

claims, see Dem. Nat’l Com. v. Bostelmann, 2020 WL 3077047 

(W.D. Wis. June 10, 2020), they proceeded with discovery, 

presented their case at an evidentiary hearing in August, and 

obtained a favorable ruling in September. There has been no 

dallying on the plaintiffs’ part. For its part, the district judge 

responded with both alacrity and attention to detail. But according to this court, which has retroactively announced a 

May deadline for any changes to election rules, it was all for 

naught—their work was over before it began. 

Fifth and finally, although the election is drawing close, 

the district judge issued his injunction six weeks prior to the 

election, leaving ample time for Wisconsin election officials to 

alter election practices as ordered and communicate the 

changes to the public, and for his judgment to be reviewed by 

this court and, if necessary, by the Supreme Court.4 This is a 

4 As the Gear plaintiffs point out, other circuit courts have upheld injunctions modifying state election procedures in the immediate run-up to elections when the courts deemed the modifications necessary to prevent 

voter disenfranchisement. E.g., League of Women Voters of the U.S. v. Newby, 

838 F.3d 1, 12–15 (D.C. Cir. 2016) (2-1 decision) (six weeks before election); 

Obama for Am. v. Husted, 697 F.3d 423, 436–37 (6th Cir. 2012) (one month 

before election); U.S. Student Ass’n Fdn. v. Land, 546 F.3d 373, 387–89 (6th 

Cir. 2008) (2-1 decision) (six days before election). 
Nos. 20-2835 & 20-2844 13

far cry from April, when the court’s injunction was issued just 

eighteen days prior to the election and was modified to grant 

additional relief just five days prior to the election. The Covid19 pandemic is no longer new but neither is it a static phenomenon; infection rates have ebbed and surged in multiple 

waves around the country and it is only now that Wisconsin 

is facing crisis-level conditions. I suppose that the district 

court could have issued a preliminary injunction in May 

based on the experience with the April election, as my colleagues suggest, but the defendants no doubt would have argued that it was premature to deem modifications to the election code warranted so far in advance of the election,5 and 

there is a fair chance that this court might have agreed with 

them. Wisconsin infection rates in early May were less than 

one quarter of what they are now. Nothing in Purcell or its 

progeny forecloses modifications of the kind the district court 

ordered in the worsening circumstances that confront Wisconsin as the election draws nigh. Otherwise, courts would 

never be able to order relief addressing late-developing circumstances that threaten interference with the right to vote.6

5 In fact, the defendants did argue precisely that in moving to dismiss the 

DNC’s complaint shortly after the April election took place. See Dem. Nat’l 

Com. v. Bostelmann, 2020 WL 3077047 (W.D. Wis. June 9, 2020). 

6 Professor Stephanopoulos cites the Bipartisan Campaign Reform Act’s 

special restrictions on campaign ads imposed within 60 days of an election, and the Military and Overseas Voter Empowerment Act’s requirement that absentee ballots be sent to certain voters at least 45 days prior to 

an election, as possible guideposts for determining when the eleventh 

hour has arrived for judicial intervention into an election. Freeing Purcell. 

Obviously, we are past both reference points here. But Stephanopoulos 

himself argues that this sort of deadline (which, of course, the Supreme 
14 Nos. 20-2835 & 20-2844 

The court’s second rationale for granting a stay—that “the 

design of adjustments during a pandemic” is a task for elected 

officials rather than the judiciary—announces an ad hoc 

carve-out from the Anderson-Burdick framework for the review of state election rules. See Anderson v. Celebrezze, 460 U.S. 

780, 103 S. Ct. 1564 (1983); Burdick v. Takushi, 504 U.S. 428, 112 

S. Ct. 2059 (1992). That framework does call for deference to 

state officials, depending upon the degree of restriction that 

state election rules impose on the right to vote: severe restrictions demand strict judicial scrutiny, whereas modest, 

unexceptional restrictions enjoy a presumption of validity. Id.

at 434, 112 S. Ct. at 2063–64. But what the majority proposes 

is total deference to state officials in the context of pandemic, 

with no degree of judicial scrutiny at all. That I cannot endorse. Communicable diseases can impose real and substantial obstacles to voting, and voting rules that are unobjectionable in normal conditions may become unreasonable during 

a pandemic, when leaving one’s home and joining other voters at the polls carries with it a genuine risk of becoming seriously ill. 

Notably, the Wisconsin Election Commission, whose 

members are appointed by two sets of elected officials—the 

Legislature and the Governor—was represented in the litigation below. As I noted at the outset, the Commission has acceded to the district court’s injunction and has not sought a 

stay. As long as we are discussing deference to state officials, 

the views of the Commission, which is charged with enforcing Wisconsin’s election rules, ought to count for something. 

Court has yet to adopt) should not be conclusive in assessing the propriety 

of judicial intervention. 
Nos. 20-2835 & 20-2844 15

Justice Kavanaugh’s concurrence in Andino posits that a 

state legislature’s decision whether or not to alter voting rules 

in response to the Covid-19 pandemic ordinarily should not 

be second-guessed by the judiciary, which lacks the legislature’s presumed expertise in matters of public health and is 

not accountable to the people. 2020 WL 5887393, at *1. But 

state legislatures do not possess a monopoly on matters of 

public health, see, e.g., Elim Romanian Pentecostal Church v. 

Pritzker, 962 F.3d 341 (7th Cir. 2020) (reviewing Governor’s 

executive order restricting size of public assemblies in light of 

public health emergency), and when state government is divided as it is in Wisconsin, stalemates occur. When a state 

proves unwilling or unable to confront and adapt to external 

forces that pose a real impediment to voting, it places into 

jeopardy the most cherished right that its citizens enjoy. (The 

debacle that occurred with respect to in-person voting in Wisconsin on April 7, as I discuss below, makes that point all too 

clear.) The right to vote is a right of national citizenship. Dunn 

v. Blumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 999–1000 (1972). 

It is essential to the vitality of our democratic republic. E.g., 

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535 (1964) 

(“No right is more precious in a free country than that of having a voice in the election of those who make the laws under 

which, as good citizens, we must live.”).7 And no citizen of 

Wisconsin should be forced to risk his or her life or well-being 

in order to exercise this invaluable right. Wholesale deference 

7 Indeed, the irony of Justice Kavanaugh’s rationale is that unchecked deference to the state legislature as to voting procedures during a pandemic 

may render legislators unaccountable to voters wishing to exercise their 

franchise. 
16 Nos. 20-2835 & 20-2844 

to a state legislature in this context essentially strips the right 

to vote of its constitutional protection. 

I submit that our foremost duty in this case is to protect 

the voting rights of Wisconsin citizens, which are seriously 

endangered, rather than discretionary action (or inaction) by 

one branch of state government, in the face of a pandemic. My 

evaluation of the district court’s injunction proceeds on that 

understanding. 

A central premise of the Legislature’s request for a stay of 

the changes that Judge Conley ordered to Wisconsin’s election rules is that the ability to register and/or vote in person 

remains a perfectly acceptable alternative to any Wisconsin 

voter who is unable to register in advance of the election and 

to return an absentee ballot prior to election day. Were these 

ordinary times, I would have no difficulty agreeing with the 

Legislature. But what the Legislature downplays—indeed, 

barely acknowledges in its briefs—is the concrete risk that a 

100-year pandemic, which at present is surging in Wisconsin, 

poses to anyone who must brave long lines, possibly for 

hours, in order to register and vote in person. 

Historically, the vast majority of Wisconsin voters have 

cast their ballots in person, and Wisconsin’s election system 

has evolved against that backdrop, with provisions for absentee voting having served as a courtesy for the minority of voters whose work, travel, or other individual circumstances 

presented an obstacle to voting in person on election day. 

D. Ct. Op. 15, 39. Absentee ballots have often constituted less 

than 10 percent of ballots cast in Wisconsin, and, until this 

year, never more than 20 percent. D. Ct. Op. 15. Voters have 

also relied heavily on the State’s liberal provision for sameday voting registration, with some 80 percent of all Wisconsin 
Nos. 20-2835 & 20-2844 17

voter records reflecting some use of this feature. D. Ct. Op. 39 

(citing R. 532 at 58.) The Covid-19 pandemic has turned this 

in-person voting paradigm on its head, as Judge Conley emphasized. Whereas, in the April 2019 election, voters requested (and were sent) a total of 167,832 absentee ballots 

(D. Ct. Op. 12 n.9), one year later, that total increased nearly 

eight-fold to 1,282,762 (D. Ct. Op. 12), with absentee ballots 

comprising 73.8 percent of ballots counted in the April 2020 

election (D. Ct. Op. 15). 

The strain that the pandemic and the sudden, unprecedented preference for absentee voting placed on state and local officials had predictable results in the April 2020 election. 

Election officials scrambled to keep up with the overwhelming demand for absentee ballots. Between April 3 and April 6 

(the day before the election), local officials were still in the 

process of mailing more than 92,000 absentee ballots, virtually 

all of which were sent too late for them to be filled out and 

mailed back by election day. D. Ct. Op. 13. Another 9,388 ballots were timely applied for but never sent. D. Ct. Op. 13. Approximately 80,000 absentee ballots were completed and postmarked on or before election day but were only received by 

election officials in the six days after the statutory deadline for 

such ballots. D. Ct. Op. 17. These ballots would not have been 

counted but for the district court’s order, sustained by this 

court and modified by the Supreme Court, extending the 

deadline. 

Notwithstanding the fact that nearly three-quarters of the 

votes cast in the April 2020 election were via absentee ballots, 

in-person voting in that election presented challenges of its 

own. Poll workers were in short supply, as individuals who 

would normally have staffed the polls (many of them 
18 Nos. 20-2835 & 20-2844 

seniors8) stayed away in droves, particularly in urban locations. Milwaukee, with a population of 592,025, normally operates 180 polling sites. The city could manage to open only 

five on April 7. D. Ct. Op. 16. Green Bay, population 104,879, 

normally operates 31 polling sites. On April 7, just two were 

open. D. Ct. Op. 16. Lines of voters (thousands of whom had 

timely applied for absentee ballots but had not received them) 

stretched for blocks and people waited hours to vote.9 Some 

were masked, many were not. Some number of voters (we do 

not know how many) showed up to vote in person after not 

receiving an absentee ballot prior to election day and, discouraged by the long lines and wait times, walked away without 

casting a vote. D. Ct. Op. 17 (citing voter declarations). Those 

who stayed in line faced a discernible risk of becoming 

8 See Michael Barthel and Galen Stocking, Older people account for large 

shares of poll workers and voters in U.S. general elections, PEW RESEARCH 

CENTER: FACT TANK, NEWS IN THE NUMBERS (April 6, 2020), 

https://www.pewresearch.org/fact-tank /2020/04/06/older-people-account-for-large-shares-of-poll-workers-and-voters-in-u-s-general-elections/; Laurel White, ‘It’s Madness.’ Wisconsin’s election amid coronavirus 

sparks anger, NPR (April 6, 2020), https://www.npr.org/2020/04/06 

/827122852/it-s-madness-wisconsin-s-election-amid-coronavirus-sparksanger. 

9 See, e.g., Astead W. Herndon and Alexander Burns, Voting in Wisconsin 

During a Pandemic: Lines, Masks and Plenty of Fear, NEW YORK TIMES (April 

7, 2020, updated May 12, 2020) (“The scenes that unfolded in Wisconsin 

showed an electoral system stretched to the breaking point by the same 

public health catastrophe that has killed thousands and brought the country’s economic and social patterns to a virtual standstill in recent weeks.”); 

Benjamin Swasey & Alana Wise, Wisconsin vote ends as Trump blames governor for long lines, NPR (April 7, 2020), 

https://www.npr.org/2020/04/07/828835153/long-lines-masks -and-plexiglass-barriers-greet-wisconsin-voters-at-polls. 
Nos. 20-2835 & 20-2844 19

infected. Although the evidence on this point is mixed, public 

health officials determined that 71 individuals contracted 

Covid-19 after voting in-person or working at the polls on 

April 710; one analysis extrapolates from the available data to 

estimate that a ten percent increase in in-person voters per 

polling location is associated with an eighteen percent increase in Covid-19 cases two to three weeks later.11 

The district court, presented with largely undisputed evidence that (1) the demand for absentee ballots in the forthcoming general election in November will be even greater 

than it was in April (as many as 2 million absentee ballot requests are anticipated), (2) recent cutbacks at the U.S. Postal 

Service and the resulting delays in mail delivery will present 

an even greater obstacle to registering and voting by mail 

than it did in the spring, and (3) persistent concerns about a 

shortage of poll workers on election day again raise the specter of long lines to vote in person, ordered a set of five limited 

modifications to Wisconsin election rules aimed at compensating for these conditions and ensuring, consistent with public health advice and voters’ obvious preference for absentee 

voting, that voters who wish to vote by mail may do so. The 

two most significant of these conditions are comparable to 

10 See David Wahlberg, 71 people who went to the polls on April 7 got Covid19; tie to election uncertain, WIS. STATE J. (May 16, 2020), https://madison.com/wsj/news/local/health-med-fit/71 -people-who-went-to-thepolls-on-april-7-got-covid-19-tie-to /article_ef5ab183-8e29-579a-a52b1de069c320c7.html. 

11 Chad Cotti, Ph.D., et al., The Relationship between In-Person Voting and 

COVID-19: Evidence from the Wisconsin Primary, Nat’l Bureau of Economic 

Research, Working Paper No. 27187 (May 2020, revised October 2020), 

available at https:// www.nber.org/papers/w27187. 
20 Nos. 20-2835 & 20-2844 

those sustained by this court, as modified in one respect by 

the Supreme Court, for the April election. None are opposed 

here by the Wisconsin Executive, which is charged with administering the election. See Repub. Nat’l Com. v. Common 

Cause Rhode Island, — S. Ct. —, 2020 WL 4680151, at *1 (U.S. 

Aug. 13, 2020) (noting, inter alia, in denying stay of judicially 

ordered modifications to state election law, that “here the 

state election officials support the challenged decree ...”). To 

the extent these modifications intrude modestly upon the 

State’s ability to establish its own rules for conducting elections, they are more than justified by the present pandemic 

and the unacceptable risks that in-person voting presents to 

the citizens of Wisconsin. 

The Legislature challenges Judge Conley’s exercise of discretion in ordering these modifications as if the Covid-19 pandemic presented a quotidian problem in an otherwise routine 

election, where the options for voting in-person might represent an entirely adequate alternative to voting by mail. The 

State’s experience with the April election and the current state 

of the pandemic in Wisconsin demonstrate the fallacy in this 

premise. 

As I write this dissent, new infections are surging in Wisconsin and threatening to overwhelm the State’s hospitals. 

Judge Conley noted that in the weeks prior to his decision, 

new infections had doubled from 1,000 to 2,000 per day. 

D. Ct. Op. 20. As of Tuesday, October 6, a seven-day average 

of 2,346 new cases of Covid-19 was reported.12 The Governor 

12 Wis. Dep’t of Health Servs., COVID-19: Wisconsin Cases (as of October 

6, 2020), https://www.dhs.wisconsin.gov/covid-19/cases.htm#confirmed. 
Nos. 20-2835 & 20-2844 21

has declared a public health emergency.13 A draft report from 

the White House Coronavirus Task Force dated Monday of 

last week described a “rapid worsening of the epidemic” in 

Wisconsin and placed the State in the “red zone” for Covid19 cases, with the third-highest number of such cases per 

100,000 population in the country and seventh-highest test 

positivity rate. Nearly half of all Wisconsin counties now have 

high levels of community transmission. Coronavirus Task 

Force, State Report—Wisconsin, at 1 (Sept. 27, 2020).14 Hospitalization rates are at record highs in the State, with facilities 

in northeast Wisconsin approaching capacity due to the surge 

in Covid-19 cases15; the State is now proceeding with plans to 

open a field hospital to address the shortage of hospital beds.16

Against this worsening backdrop, the district court credited 

13 Executive Order No. 90, Office of Wisconsin Governor (Sept. 22, 2020), 

available at https://evers.wi.gov/Pages/Newsroom/Executive-Orders.aspx. 

14 Available at WASHINGTON POST website, https:// www.washingtonpost.com/context/white-house-coronavirus-task-force-report-warnsof-high-wisconsin-covid-19-spread-in-wisconsin/e5f16345-fcb4-4524-

975e-8011379ef0da/. 

15 Mary Spicuzza, et al., Some hospitals forced to wait-list or transfer patients 

as Wisconsin’s coronavirus surge continues, MILWAUKEE JOURNAL SENTINEL 

(Sept. 30, 2020), https:// www.jsonline.com/story/news/2020/09/30/wisconsin-hospitals-wait-list-patients-covid-19-surge-coronavirus-greenbay-fox-valley-wausau/3578202001/. 

16 Mary Spicuzza and Molly Beck, Wisconsin to open field hospital at State 

Fair Park on October 14 as surge in coronavirus patients continues in Fox Valley, 

Green Bay, MILWAUKEE JOURNAL SENTINEL (October 7, 2020), 

https://www.jsonline.com/ story/news/local/wisconsin/2020/10/07/wisconsin-preparing-open-alternate-care-facility-state-fair-park-state-continues-face-surge-covid-1/5909769002/. 
22 Nos. 20-2835 & 20-2844 

the opinion of a nationally recognized expert in public health 

surveillance, who opined that “[t]here is a significant risk to 

human health associated with in-person voting during the 

COVID-19 pandemic[;] [t]here will almost certainly be a significant risk of contracting and transmitting COVID-19 in 

Wisconsin on and around November 3, 2020[;] [t]he risk of 

contracting or transmitting COVID-19 will deter a substantial 

portion of Wisconsinites from voting in person on November 

3, 2020[;] and [i]ncreasing the ease and availability of absentee-ballot voting options is critical to protecting public health 

during the November 3, 2020 election.” D. Ct. Op. 23; Expert 

Report of Patrick Remington, M.D. at 1 (R. 44 in Case No. 3:20-

cv-00459-wmc). 

Presented with the evidence as to what occurred in April 

and what is happening now with respect to the pandemic, 

Judge Conley reasonably concluded that (1) a substantial 

number of eligible Wisconsin voters will not meet the October 

14 deadline to register online or by mail, leaving them with 

only in-person options to register, (2) of the 1.8 to 2 million 

registered voters who are expected to timely request absentee 

ballots (D. Ct. Op. 20, 47), as many as 100,000 will not be able 

to return those ballots by election day through no fault of their 

own (D. Ct. Op. 51), and (3) when faced with the risks associated with registering or voting in-person, and potentially having to wait in line for hours in order to do so, some number of 

voters will deem the risk too great. These conclusions explain 

why he ordered modest adjustments to Wisconsin’s election 

rules in order to minimize that possibility. 

Of all of us, Judge Conley is the one judge who heard the 

evidence first-hand and is closest to the ground in Wisconsin. 

We owe deference to his judgment. He considered the 
Nos. 20-2835 & 20-2844 23

Anderson-Burdick factors for constitutional challenges to state 

election rules. Consistent with Luft v. Evers, 963 F.3d 665, 671 

(7th Cir. 2020), he considered the Wisconsin election rules in 

their totality in assessing the burdens that those rules, under 

the present circumstances, impose on the right to vote. He 

considered Purcell’s admonition that judicial orders modifying election rules can result in voter confusion and an incentive not to vote, especially as an election draws closer. 549 U.S. 

at 4–5, 127 S. Ct. at 7. He considered this court’s prior ruling 

in April granting a stay as to all but two of the modifications 

ordered for the April election. Bostelmann, 2020 WL 3619499. 

And he considered the Supreme Court’s ruling, issued one 

day prior to the April election, which both chastised the district court for altering Wisconsin’s election rules within days 

of the election but also modified the extension of the ballotreceipt deadline to require that mailed absentee ballots be delivered or postmarked on or before election day and accepted 

the deadline change as modified. Republican Nat’l Com., 140 

S. Ct. at 1207, 1208. 

In view of the fact that this court allowed extensions of the 

ballot-request deadline and ballot-receipt deadline to be 

implemented in the April election, it is not clear to me why 

the majority has decided to stay comparable modifications 

(effectively nullifying them) for the November election. Yes, 

the Covid-19 virus is no longer a new menace and Wisconsin 

election officials have now had the experience of conducting 

two elections during the pandemic. But the Wisconsin 

election code remains one designed primarily for in-person 

voting, whereas the surge of Covid-19 cases in Wisconsin has 

only increased the risks associated with in-person voting 

since April. The logistical demands posed by absentee voting 

will if anything be greater for the November general election, 
24 Nos. 20-2835 & 20-2844 

with possibly a million additional absentee ballots to be sent 

and returned by mail; and with the recently-discovered 

cutbacks in Postal Service capacity,17 there is even greater 

reason to be concerned about the ability of voters to both 

register and vote by mail. Registering and voting in person 

remain as alternatives, but no legislator, no election official, 

and certainly no judge can assure Wisconsin voters that there 

is no risk associated with registering and/or voting in person 

as infection rates spike in their communities, especially in 

high-population urban areas. Election officials may hope that 

more polling places will be open in November than April, but 

they cannot guarantee that enough poll workers will show up 

on election day to avoid the sorts of long voter lines and waits 

that made headlines then. Nor, by the way, can anyone assure 

voters that they will not be waiting in line next to one or more 

unmasked voters, or one who is contagious with the 

coronavirus. Indeed, a lawsuit challenging the Governor’s 

mask mandate is presently pending in the Wisconsin courts.18

17 See, e.g., Jacob Bogage, et al., DeJoy pushes back on criticism of changes to 

Postal Service, says he won’t restore sorting machines, WASHINGTON POST

(Aug. 24, 2020), https://www.washingtonpost.com/politics/2020/08/24/dejoy-testimony-usps-house /; Elise Viebeck and Jacob 

Bogage, Federal judge temporarily blocks USPS operational changes amid concerns about mail slowdowns, election, WASHINGTON POST (Sept. 17, 2020), 

https://www.washingtonpost.com/politics/federal-judge-iss-ues-temporary-injunction-against-usps-operational-changes-amid-concerns-aboutmail-slowdowns/2020/09/ 17/34fb85a0-f91e-11ea-a275-

1a2c2d36e1f1_story.html. 

18 See Scott Bauer, Conservative law firm seeks to end Wisconsin mask order, AP

NEWS (Sept. 28, 2020), https://apnews.com/article/virus-outbreak-healthwisconsin-public-health-270d663b9411b33a17fc45fdf8ad2720; Molly 

Beck, GOP leaders go to court in support of effort to strike down Tony Evers’ 

mask mandate, WISCONSIN JOURNAL SENTINEL (Oct. 2, 2020), 
Nos. 20-2835 & 20-2844 25

Having in mind the shortfalls with the April election and 

the current public health crisis posed by the pandemic, it is 

not unreasonable for Wisconsin voters to view the option of 

in-person registration and voting as a form of Russian roulette. For eligible voters who are unable to register by mail by 

the statutory deadline (and for the April election, there were 

more than 57,000 people who registered after that deadline, 

thanks to the district court’s extension of that deadline, 

D. Ct. Op. 17) and for voters who timely request an absentee 

ballot but who either do not receive it by election day or receive it too late to return it by election day (more than 120,000 

absentee ballots were not returned by election, see D. Ct. Op. 

15), the risks associated with in-person registration and voting amount to a concrete and unacceptable, and in my view, 

severe, restriction on the right to vote. See Luft, 963 F.3d at 672 

(citing Burdick, 504 U.S. at 434, 112 S. Ct. at 2063; Anderson, 460 

U.S. at 788, 103 S. Ct. at 1569–70; Acevedo v. Cook Cnty. Officers 

Electoral Bd., 925 F.3d 944 (7th Cir. 2019)). This is especially 

true of individuals who are 65 years of age or older (more than 

900,000 people in Wisconsin19), obese (some 40 percent of Wisconsin adults20), or suffer from chronic health conditions that 

render them especially vulnerable to complications from a 

https://www.jsonline.com/story/news/politics/2020/10/02/ gop-goescourt-support-effort-strike-down-mask-mandate/ 3592966001/. 

19 See Wis. Dep’t of Health Servs., Demographics of Aging in Wisconsin, Am. 

Community Survey Statewide & Cnty. Aging Profiles, 2014-18, State of 

Wis. Profile of Persons Ages 65 & Older (Jan. 20, 2020), 

https://www.dhs.wisconsin.gov/aging/demographics.htm. 

20 See Tala Salem, Wisconsin obesity rate higher than previous estimates, U.S.

NEWS & WORLD REPORT (June 11, 2018), https://www.usnews.com/news/health-care-news/articles/ 2018-06-11/wisconsin-obesityrate-higher-than-previous-estimates. 
26 Nos. 20-2835 & 20-2844 

Covid-19 infection (some 45 percent of all adults nationwide21). 

Of course it is true that voters have the ability to plan 

ahead, register early if need be, and request absentee ballots 

early in order to ensure that they have adequate time to complete and return their ballots prior to election day.22 But voters 

may also reasonably rely on the State’s own deadlines for advance registration and requesting an absentee ballot as a 

guide to the amount of time necessary for their registrations 

to be processed and their ballots to be issued, completed, and 

returned. Voters do not run the State’s election apparatus or 

the U.S. Postal Service; they have no special insight into how 

quickly their timely requests to register and/or vote by mail 

will be processed by election officials and how quickly the 

Postal Service will deliver their ballots. It is not reasonable to 

insist that voters act more quickly than state deadlines require 

them to do in order to ensure that either the State or the Postal 

Service does not inadvertently disenfranchise them because 

they are overwhelmed with the volume of mail-in registrations and absentee ballots. 

21 See Mary L. Adams, et al., Population-based estimates of chronic conditions 

affecting risk for complications from coronavirus disease, United States, 26 

EMERGING INFECTIOUS DISEASES J. No. 8 (August 2020), 

https://wwwnc.cdc.gov/eid/article/26/8/20-0679 _article. 

22 Completing an absentee ballot is not a matter of simply filling it out. 

Wisconsin requires absentee voters to have their ballots signed by a witness. See Wis. Stat. § 6.87(4)(b). Some 600,000 Wisconsin voters live alone 

(D. Ct. Op. 21), which means they must seek out someone outside of their 

household to sign their ballots. During a time of surging Covid-19 infections, that is not necessarily a simple task. 
Nos. 20-2835 & 20-2844 27

It is also true that voters who receive their ballots just prior 

to the election have the option of delivering their ballots to a 

dropbox or to the polls on election day. But significant numbers of Wisconsin voters lack a driver’s license (including 

roughly half of African American and Hispanic residents) and 

therefore cannot drive themselves to a poll or dropbox.23 Relying on public transportation, a taxi, a ride-sharing service, 

or a lift from a neighbor to make the trip presents difficulties 

and risks of its own, which cannot be justified if the voter has 

timely complied with existing deadlines and yet cannot meet 

existing deadlines through no fault of her own. 

I recognize that the district court’s decision to order modifications to Wisconsin’s election practices represents an intrusion into the domain of state government, but in my view 

it is a necessary one. We are seven months-plus into this pandemic. The Legislature has had ample time to make modifications of its own to the election code and has declined to do so. 

The Wisconsin Elections Commission, divided 3-3 along 

party lines, concluded that it lacks the authority to order such 

modifications. This leaves voters at the mercy of overworked 

state and local election officials, a hamstrung Postal Service, 

and a merciless virus. What we must ask, as Judge Conley 

did, is whether Wisconsin’s election rules, which were not 

drafted for pandemic conditions, effectively restrict a Wisconsin citizen’s right to vote under current conditions. The answer, I submit, is yes. Based on the State’s experience with the 

April election, we know it is likely that tens of thousands of 

23 See John Pawasarat, The Driver License Status of the Voting Age Population 

in Wisconsin, Employment and Training Institute, Univ. of Wis.-Milwaukee (June 2005), available at https://dc.uwm.edu/eti_pubs/68/. 
28 Nos. 20-2835 & 20-2844 

voters will not meet the October 14 deadline to register online 

or by mail, especially if they are relying on the mail to complete that process. We know that tens of thousands of voters 

likely will not be able to return their ballots by mail before 

election day, through no fault of their own. We know that registering or voting in person, especially on election day, will 

expose some number of voters to a concrete risk of Covid-19 

infection. Collectively, these conditions pose a real and substantial impediment to the right to vote. Whether that obstacle 

is viewed as modest or severe, and whether viewed through 

the lens of rational basis review or strict scrutiny, it is unacceptable. The State itself purports to want people to vote absentee, and yet has done nothing to alter its election rules to 

make the necessary accommodations to ensure that voters are 

not needlessly disenfranchised by the overwhelming shift 

from in-person to absentee voting. 

I conclude with a just a few words about each of the individual modifications that the district court ordered. Individually and collectively, these modifications, in my view, represent a reasonable, proportional response to current conditions 

aimed at preserving the right to vote. 

Of these, the most important, and in my view, the most 

essential of these modifications is the six-day extension of the 

deadline for the return of absentee ballots by mail to November 9, 2020, so long as the ballots are postmarked on or before 

election day. Of the five modifications ordered by the district 

court, none is more directly aimed at protecting the right to 

vote, in that it seeks to ensure that ballots that have been 

timely cast by voters will be counted. The circumstances that 

warranted a similar extension in April are even more serious 

now: the Covid-19 pandemic makes it more imperative that 
Nos. 20-2835 & 20-2844 29

as many voters as possible vote by absentee ballot; the demand for absentee ballots is virtually certain to be even 

greater (record-shattering) than it was in April, placing unprecedented demands on election officials and the U.S. Postal 

Service alike; and cutbacks implemented by the U.S. Postal 

Service this summer (not all of which have been suspended or 

reversed) threaten recurrent if not worse delays in the delivery and return of absentee ballots. The fact that some 80,000 

ballots were received by mail after election day in April is all 

the proof necessary that an extension of the receipt deadline 

is vital as a means of protecting the voting rights of tens of 

thousands of Wisconsin voters—voters who, it cannot be said 

too often, will timely request and complete absentee ballots 

but are unable to return them by the election day deadline by 

no mistake or omission of their own. Against this, all that the 

Legislature offers is a wish to have the results of the election 

conclusively determined on election night. But weighed 

against the constitutional right to vote, this is thin gruel. 

The one-week extension of the deadline to register online 

or by mail is reasonable in terms of both the worsening pandemic and the slowdown in mail service. As Judge Conley 

pointed out, Wisconsin voters are in the habit of using the 

State’s same-day registration option to register or update their 

registration on election day. Only as Covid-19 infections 

surge in Wisconsin may voters now realize that in-person registration on election day poses unique risks, particularly if 

lines at the polls turn out to be as long as they were in April. 

At the same time, voters seeking to register by mail may run 

into the same problems that absentee voters encountered in 

April with delays in the U.S. Mail. A brief extension of the 

advance registration deadline is an appropriate response, and 

the Wisconsin Election Commission conceded that the 
30 Nos. 20-2835 & 20-2844 

extension would still leave adequate time for election officials 

to update pollbooks with registration information in time for 

election day. 

The directive to add language to the MyVote and WisVote 

websites (along with any relevant printed materials) regarding the “indefinitely confined” exception to the photo i.d. requirement is an extremely limited order aimed at eliminating 

voter confusion. Wisconsin law requires voters to present appropriate photographic identification in order to obtain a ballot, whether in-person or by mail. There is an exception to this 

requirement for a voter who is “indefinitely confined” due to 

age, infirmity, or disability; the signature of the voter’s witness will be deemed sufficient in lieu of proof of i.d. The Commission’s March 2020 guidance on this exception makes clear 

that a voter need not be permanently or totally disabled and 

wholly unable to leave one’s residence in order to qualify for 

this exception, but this guidance is not easily available to voters and the district court found that there was a substantial 

risk of voter confusion as to the scope of the exception without further guidance. This was a reasonable order. 

The order to permit replacement absentee ballots to be 

transmitted electronically to domestic civilian voters who 

have not received their ballots by mail in the penultimate 

week prior to the election (October 22–29) addresses a concrete problem that emerged in the April election: not all absentee ballots will reach voters in time for the election even if 

they have been timely requested. Recall that tens of thousands 

of ballots were still being mailed out within a few days of the 

election, making it impossible for voters to return them by 

mail (if they received them at all) by election day. Wisconsin 

law prohibits election officials from sending ballots by 
Nos. 20-2835 & 20-2844 31

electronic means to anyone but military or overseas voters. 

That restriction was modified by judicial order in 2016, see 

One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 946–

48 (W.D. Wis. 2016), and until our June 2020 decision in Luft

reversing that modification, election officials were making absentee ballots available online or by fax as necessary to domestic civilian voters. Restoring that practice for a limited 

window of time in advance of the November election makes 

eminent sense as a means of protecting the right to vote by 

voters who have timely requested an absentee ballot but have 

not received it in the mail as the election approaches. 

Finally, in view of the severe shortages of poll workers 

that hobbled the April election with numerous poll closings 

and massive voting delays, the order that local officials be allowed to employ poll workers who are not electors in the 

county where they will serve is both necessary and reasonable. Adequate staffing of the polls is essential to minimizing 

voter wait times and, in turn, public health risks. Allowing 

poll workers (be they civilians or National Guard reservists) 

to work outside of their own counties is a modest and entirely 

reasonable means of achieving that end, one that poses no risk 

to the integrity of the election. The Legislature has articulated 

no reason why this accommodation is either unnecessary or 

inappropriate. 

Given the great care that the district court took in issuing 

its preliminary injunction and the ample factual record supporting its decision, I am dismayed to be dissenting. It is a 

virtual certainty that current conditions will result in many 

voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting 

on election day. We cannot turn a blind eye to the present 
32 Nos. 20-2835 & 20-2844 

circumstances and treat this as an ordinary election. Nor can 

we blindly defer to a state legislature that sits on its hands 

while a pandemic rages. The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing 

the number of voters who may be denied the right to vote. 

Today, in the midst of a pandemic and significantly slowed 

mail delivery, this court leaves voters to their own devices. 

Good luck and G-d bless, Wisconsin. You are going to 

need it.